Here’s the next installment in the series that looks at the basics of workers’ compensation.
Under the Nebraska workers’ compensation laws, you may have the right to choose a family doctor to treat you for your work-related injury.
You may choose a doctor who has treated you or an immediate family member before this injury happened.
Immediate family members are your spouse, children, parents, stepchildren and stepparents. The doctor you choose must have records to show that past treatment was provided.
If you want to choose your doctor, you must tell your employer the name of the doctor you choose. You need to do this as soon as is practical after the accident or as soon as your employer gives you the notice of the right to choose your family physician to treat you for your work injury form.
If you are in need of immediate medical attention and or emergency medical care, you have the right to obtain care immediately.
If you, or your family, do not have a family physician, then your employer has the right to choose the doctor to treat you.
However, if your workers’ compensation claim is denied for any reason, you have the right to choose any doctor to treat you for your injury.
Any time you are faced with a major surgery recommendation for your injury, you have the right to choose the surgeon to do the surgery. You can choose any surgeon.
If you have any questions about your medical rights please feel free to contact us.
Read the previous blog posts in the workers’ compensation basics series by clicking on these links:
The series that examines the basics of workers’ compensation continues with this blog post.
In Nebraska, injured workers have a right to treat their work injuries with their own family doctor if that doctor has previously treated the worker, or an immediate family member, before the work injury. In other words, if a worker doesn’t have a family doctor, but his or her spouse, children, parents, or stepchildren have a doctor, the worker can see their doctor for his or her work injury as well. This is very important, because oftentimes, you can trust your family doctor to treat your work injury (and know your medical history) more than a doctor that your employer picks for you.
Not only may an injured worker elect to treat with his or her own family doctor for a work injury, but the injured worker may treat with any doctor if the employer does not provide the injured worker with a choice of physician form, or if the employer has denied payment of the work injury. In these situations, the chosen doctor is not limited only to the injured worker’s family doctor; it can be any or as many physicians as he or she chooses.
Many employers do not adequately inform their employees of their right to choose their own physician because they may want to steer an injured worker to a doctor who works for the employer. More specifically, a doctor recommended by an employer may be more likely to release a worker back to work too soon or not provide adequate treatment, in order to reduce costs for the employer.
In sum, you nearly always want to choose your own doctor for your work injury. You’ll likely get better, more personalized treatment from someone you trust, as opposed to the “company doctor.”
Read the previous blog posts in the workers’ compensation basics series by clicking on these links:
One phrase that is thrown around in the world of workers’ compensation is “light duty.” Light duty refers to a job done by an injured worker while they are on work restrictions. However “light duty” isn’t always light duty if the employee physically struggles with doing their light-duty job. To me, light duty can be a misleading description of what injured workers go through when working alternate-duty jobs. Here are three situations where I think the term light duty is misleading.
1. Employee forced to work without restrictions with one limb when the other limb is restricted. This is common in the meatpacking industry with hand, wrist and arm injuries, and I have seen it in construction as well. Employers read work restrictions too literally and force employees to work unrestricted with the uninjured hand or arm. Unfortunately, the result of this is that the other arms or hand can get injured through overcompensation or overuse. This can lead to another and/or a larger workers’ compensation claim, which also leads to more medical expenses, pain, suffering and inconvenience for the injured workers and their families.
2. Doctor-given restrictions do not really reflect true physical restrictions. This can happen for a couple of reasons. One reason is that a doctor might not know the “light duty” job description. To remedy this, the employee needs to be clear about telling the doctor what his or her actual duties are so the doctor can give accurate job restrictions. Having a written job description is extremely helpful. If management makes it difficult for you to get a copy of your job description, this should indicate that you need to contact a lawyer and that the company may be discriminating against you because of your injury. Second, the doctor may be unduly influenced by an employer or insurer. In Nebraska, we have doctor-choice rights as part of our workers’ compensation act. In other states, attorneys have filed RICO suits against unlawful combinations of employers, insurers and doctors who conspired to undercut the value of workers’ compensation claims. If you feel you are being treated unfairly by a doctor, you should contact an experienced attorney to see what your options are.
3. Work restrictions are difficult to measure. Work restrictions are usually measured by lifting and so-called “non-material handling” activities like walking, bending, climbing, etc. This can exclude a whole host of other restrictions, like noise tolerance, heat and cold sensitivity, as well as dust and chemical sensitivity, which can make a job difficult. Some serious restrictions can also defy easy attempts to measure them. Someone suffering the permanent effects of a head injury may get periodic headaches and sickness that force them to leave work on an irregular basis. This kind of restriction is difficult to measure during a medical examination or even in a functional capacity evaluation, but it certainly impacts someone’s ability to hold a job.
This blog post is the next in the series that examines the basics of workers’ compensation.
The first, and perhaps most important, workers’ compensation benefit is the medical benefit. This is a workers’ compensation benefit that includes payment of all treatment for a work injury. The treatment can be as small as stitches from a cut finger all the way to complex spine surgery. Regardless, the treatment and medical care should be covered 100 percent by the employer or workers’ compensation insurance company. There is neither co-payment nor deductible due for the treatment for the work injury. This medical coverage for work injuries can potentially last for life, depending on the injury and circumstances.
Not only is all treatment, like surgery, covered for work injuries, but so are other methods of rehabilitation: like physical therapy and medication. In other words, there should not be any co-payments for physical therapy, prescription medication, or other medical devices. Further, the mileage traveling to and from the treatment (or even to the pharmacy) should be reimbursed. This year that rate is 57.5 cents per mile.
These tips below are important to ensure that all of your medical bills and prescriptions for your work injury continue to be properly paid in full.
When you go to your doctor for treatment, make sure to inform your medical provider that you are seeing them for a work-related injury or illness, and ask them to send the bills to your employer. Also, make sure to thoroughly explain to your medical provider how you were injured or how you became ill. Give details about how the accident or work activities injured you or made you sick. Finally, inform the medical provider everything about your injury or illness: where you hurt, how the pain feels, your ability to function at home and work, etc. If your doctor wants you to avoid certain activities in order to promote healing, be sure to get a written copy of those restrictions from your doctor.
Look for information about choosing a physician (physician choice) to treat a work injury in an upcoming blog post in the workers’ compensation basics series.
Read the previous blog posts in the series by clicking on these links:
This blog post is the fourth in a series that examines the basics of workers’ compensation.
Whether an injured employee provided notice of an injury to their employer is an issue that often arises in a workers’ compensation case. It is always part of an injured worker’s burden to prove that they provided notice of their injury to their employer. However, an employer may raise this issue as a possible defense against the injured worker’s claim for benefits. Making sure an employer knows about an injury, regardless of whether the injured worker knows for sure that it is work-related, is typically a very simple – but very important – part of a workers’ compensation case.
The reasons for requiring notice make a lot of sense when you think about it: if the employer does not know about the injury, how can the employer know an injured worker may require medical care or other benefits? Different employers will have different procedures for reporting accidents and injuries, so it is important for employees to consult their employee handbook to find out what their employer expects. Ultimately, the claim may be compensable whether the injured worker followed the rules or not, but it is always the best policy to be proactive and avoid unnecessary problems down the road.
What happens if an injured worker thinks his or her injury might be work-related, but he or she is not sure and the injury isn’t reported right away? Maybe an accident occurred at work, but the injured worker did not notice any symptoms until the next day? Or they knew they were hurt, but did not seek medical care for several weeks because they thought it would go away on its own? Nebraska workers’ compensation law requires an employee to notify their employer of an injury “as soon as practicable” after the accident occurred. There is no answer in Nebraska as to what, exactly, “as soon as practicable” means in terms of days, weeks or months. It will depend on the facts of the case. Ideally, an accident occurs and an employee provides notice in writing immediately following the accident. When things don’t turn out “ideally,” however, if an employee can prove that the employer had sufficient notice or knowledge of the employee’s injury to lead a reasonable person to conclude that the injury was potentially compensable, the notice is considered sufficient under Nebraska law. The question is whether the employer knew enough that a reasonable employer would conclude they had better investigate further. This type of notice may come in the form of requests for time off to attend medical appointments, showing up to work with a brace on or the fact that an employer processes the employee’s bills with his or her group health insurance.
The important thing to remember about notice is just that: it is important. It is an important and simple step to take whenever an employee is injured. It can also be complicated, so consult an experienced workers’ compensation attorney when you think you may have a notice problem or when your employer denies your claim because of an alleged lack of it.
Read the previous blog posts in the series by clicking on these links:
The Occupational Safety and Health Administration (OSHA) defines workplace violence as any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. OSHA also reports that nearly 2 million American workers report having been victims of such violence each year. We are probably most likely to think of the horrible stories of violent acts that occur in the course of commission of a crime such as a robbery. These acts are committed by persons who have no legitimate reason to be there, with no relationship to the employer or employees. Many instances of workplace violence are also committed by upset clients or customers, students or patients. Family members, acquaintances, and persons who have personal relationships with employees may also be perpetrators.
What happens when someone is injured due to violence that occurs between co-workers, though? Are injuries sustained as a result of this violence compensable under Nebraska workers’ compensation law? The answer, like many answers to legal questions, is it depends. The fact that you can prove you were assaulted and injured on the job does not automatically mean you are entitled to benefits. It is always the injured workers’ burden to prove he or she suffered injuries because of an accident arising out of and in the course of employment. Here, too, an injured worker must prove the accident resulted from risks arising from within the scope or sphere of the worker’s job. The general rule for workplace violence in Nebraska law is that where an assault is purely personal, the victim is not entitled to workers’ compensation benefits. This means that if you are assaulted at work by a co-worker, and you are unable to show that the violence grew out of or was connected to the relationship as fellow employees or acts in the performance of work, you may not be entitled to compensation for your injuries.
Examples of cases where an injured employee was denied benefits include where a fight broke out over payment on a side job, where one employee assaulted another because he had a problem with that employee’s status as a registered sex offender, or where one employee shot and killed her husband (a co-worker) allegedly due to her fear of further domestic violence. The courts determined in these cases there was no causal connection between the employment and the accident and injury.
Whether an accident arises out of and in the course of employment must be determined by the facts of each case. As a practical matter, in many cases, a claim for injuries due to workplace violence may take more time than usual to process. Sorting through witness accounts and getting every side of the story will be a necessary and often complicated part of the workers’ compensation insurer’s investigation. Since finding out the reason for the incident is significant, benefits may be more likely to be delayed than in a more typical or common workers’ compensation claim. It is important to consult an experienced workers’ compensation attorney if you have questions about whether you are entitled to workers’ compensation benefits for an injury resulting from workplace violence.
This blog post is the third in a series that examines the basics of workers’ compensation.
To be a covered workers’ compensation claim, an employee’s personal injury must be caused by an accident or occupational disease, but what does that mean?
The Nebraska Workers’ Compensation Act defines accident as: “an unexpected or unforeseen injury happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. The claimant shall have a burden of proof to establish by a preponderance of the evidence that such unexpected or unforeseen injury was in fact caused by the employment. There shall be no presumption from the mere occurrence of such unexpected or unforeseen injury that the injury was in fact caused by the employment. …” Nebraska Revised Statute 48-151 (2)
Of course, many workers’ compensation injuries are not as simple or as clear as a broken arm that was the result of a fall. Some injuries are caused by repetitive motion or cumulative trauma on the job. In those cases, the injuries are still considered workers’ compensation “accidents” under the definition above, even though the injuries did not truly occur “suddenly and violently” as required by the statute.
As for an occupational disease, the Workers’ Compensation Act defines it as “a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and shall exclude all ordinary diseases of life to which the general public is exposed.” Nebraska Revised Statute 48-151 (3) Examples to think about would be mesothelioma for asbestos workers or black lung for coal miners.
In sum, pretty much any injury or illness that an employee receives from work can fit into the definition of “accident” under the Nebraska Workers’ Compensation Act. However, proving the injury is much more difficult and may require the help of a lawyer.
The short answer is yes, but it could be difficult to prove if it is not directly related to another workers’ compensation injury. In Nebraska, proving a pulmonary embolism and deep vein thrombosis (DVT) requires the same legal and medical causation tests as a heart attack or stroke (see Zissin v. Shanahan and Wingfield v. Hill Brothers Transportation, Inc.).
What that means is legal causation must be proved by showing that exertion or stress encountered during employment is greater than that experienced during the ordinary non-employment life. Then, it must also be proven by medical causation: i.e., show that the employment contributed in some material and substantial degree.
On the other hand, if someone develops DVT as a result of another injury caused by work, it would probably be much easier to meet the causation required to prove compensability. For example, let’s say a worker injures his knee during work and has surgery on that knee. Then, as a result of the surgery, a postoperative complication of DVT arises and eventually becomes a pulmonary embolism. In that scenario, the pulmonary embolism is clearly related to the work injury and clearly compensable.
Absent a prior injury, however, causation must be met by the standards stated above, which will be very fact intensive. An example of this scenario came up in the recent case, Wingfield v. Hill Brothers Transportation, Inc., 288 Neb. 174. In that case, a truck driver for 35 years asserted that his deep vein thrombosis and pulmonary embolism was from sitting while driving a truck so long. The workers’ compensation court dismissed the cases, holding that the truck driver did not adequately prove legal and medical causation.
This case illustrates how difficult the causation standard is for pulmonary embolism cases that are not directly linked to a work injury. These types of cases will almost certainly require the assistance of a lawyer.